Gurrola v. Astrue ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
RAUL GURROLA, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-1954 (PLF)
)
MICHAEL J. ASTRUE, Commissioner, )
Social Security Administration, )
)
Defendant. )
__________________________________________)
OPINION
Plaintiff Raul Gurrola asks this Court to reverse the denial of his application for
Social Security disability insurance benefits or, in the alternative, to remand this case to the
Social Security Administration (“SSA”) for further proceedings. The defendant, the
Commissioner of the SSA, opposes that motion and requests affirmance of the SSA’s
determination. After careful review of the parties’ papers, the administrative record, and the
relevant case law, the Court will grant the defendant’s motion for affirmance.
I. BACKGROUND
In order to receive disability benefits under the Social Security Act, Mr. Gurrola
must demonstrate that he is “disabled.” 42 U.S.C. §§ 423(a)(1)(D), 1382(a)(1). He is disabled
within the meaning of the statute “if he is unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of not less
than 12 months.” Id. §1382c(a)(3)(A). In general, an individual qualifies as disabled “only if his
physical or mental impairment or impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national economy. . . .” Id.
§ 1382c(a)(3)(B). Mr. Gurrola contests the finding by an Administrative Law Judge (“ALJ”) of
the SSA that he is not disabled because he is able to engage in substantial “light” work that exists
in the national economy.1
Mr. Gurrola moved to the United States from Mexico in 1980 and over the next
two decades worked as an unskilled laborer in various positions. Administrative Record
(“A.R.”) at 17, 69. In May of 2000, he began a new job at a newspaper, The Gazette, that
involved catching piles of papers and stacking them in pallets. Id. at 69-70, 156. Less than a
month later, on May 31, 2000, he ceased work because of a lower back injury. Id. at 55, 122.
After seeking medical care and receiving physical therapy, Mr. Gurrola was able to return to
work in June 2000. Id. at 121-22. On June 20, 2000, however, Mr. Gurrola met again with his
doctor and, although reporting decreased pain, was described by his doctor as being “fairly vocal
about the fact that he . . . had no work restrictions and [was] doing repetitive lifting of 25 pound
bundles of papers.” Id. at 117. His doctor advised The Gazette that Mr. Gurrola should avoid
lifting more than twenty pounds at a time and minimize bending and twisting. Id. at 107, 117. In
light of those restrictions, The Gazette suspended Mr. Gurrola’s work and arranged for him to
receive temporary disability benefits through July 11, 2000. A.R. at 107.
1
“Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be
very little, a job is in this category when it requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and pulling of arm or leg controls.” 20
C.F.R. § 404.1567.
2
On July 13, 2000, two days after the termination of his temporary disability
benefits, Mr. Gurrola returned to his doctor and complained of worsening back pain. A.R. at
113. Concluding that Mr. Gurrola appeared to be “worsening with conservative care” although
objective evidence of injury was “minimal,” the doctor decided to refer Mr. Gurrola to a
physiatrist, Dr. Bissell. Id. Dr. Bissell opined that Mr. Gurrola displayed “significant pain
behaviors” and “was not getting any benefit from physical therapy.” Id. at 215-16.
Mr. Gurrola was next evaluated on July 31, 2000, by Dr. Thomas Higginbotham,
after Mr. Gurrola’s attorney requested a change in health care provider. Id. at 156-59. Dr.
Higginbotham saw Mr. Gurrola numerous times between 2000 and 2002. See id. at 402-06. At
his initial appointment with Dr. Higginbotham, Mr. Gurrola complained of pain in his lower
back, buttocks, and shoulders. Id. at 159-60. Dr. Higginbotham speculated that his patient might
“have a ligamentous strain component” or “disc pathology of the low back because of the long-
standing back pain, the intense nature and his failure to improve.” Id. at 159. An MRI revealed
that Mr. Gurrola had spondylolisthesis as well as stenosis near the base of his spine. Id. at 96.2
Mr. Gurrola filed an application for Social Security disability benefits on
September 27, 2000. A.R. at 14. On October 2, 2000, Dr. Higginbotham completed a “work
restriction evaluation” for Mr. Gurrola in which he indicated that Mr. Gurrola was capable of
working eight hours a day, but could only sit for up to fifteen minutes at a time, walk for thirty,
and stand for ten. Id. at 150. Although Dr. Higginbotham believed Mr. Gurrola could probably
2
Spondylolisthesis is “the forward slipping (anterior displacement) of a vertebra
upon the vertebra below.” CHARLES J. FRANKEL & JAMES G. ZIMMERLY , LAWYERS’ MEDICAL
CYCLOPEDIA , ch. 16, pt. 2, § 16.14 (2009). Spinal stenosis is “a narrowing of the spinal canal.”
Id. § 16.32a.
3
also bend, stoop, twist, and/or kneel intermittently for at least two hours in an eight-hour
workday, Mr. Gurrola disagreed and felt “he could probably only do these activities one or two
times in a day.” Id. at 152. Over the next several months Dr. Higginbotham and other doctors to
whom Mr. Gurrola was referred attempted to treat his condition using a back brace and epidural
injections, id. at 382-83, but Mr. Gurrola reported increased pain localized in his lower back and
right buttock. Id. at 195. An orthopedic specialist recommend that Mr. Gurrola consider surgical
decompression and fusion of selected vertebrae, id., but Mr. Gurrola did not act upon that
recommendation. Id. at 217.
On February 27, 2001, Dr. Higginbotham opined in a second work restriction
evaluation that Mr. Gurrola was no longer able to work an eight-hour day, and that he could sit or
stand intermittently for only twenty minutes at a time for up to a total of two hours and walk for
fifteen minutes at a time for up to a total of one hour. A.R. at 137. Dr. Higginbotham noted that,
since Mr. Gurrola does not speak English, his ability to obtain a job meeting the appropriate
specifications might be limited or nonexistent. Id. at 139.
In July 2001, as part of the application process for Social Security disability
benefits, a doctor employed by the state of Colorado examined Mr. Gurrola and concluded that
he was capable of working full eight-hour days, of which up to six hours could be spent sitting
(“with normal breaks”) and up to six standing or walking. A.R. at 87-88. Mr. Gurrola’s
application for Social Security benefits was subsequently denied on August 6, 2001. Id. at 30-31.
The following month, Mr. Gurrola again reported increased pain to Dr. Higginbotham, id. at 287,
and received injections which relieved about “50 % . . . of his pain about the buttocks and back.”
Id. at 286. Dr. Higginbotham reported that while “[s]ome of [Mr. Gurrola’s] pain [was] frank
4
pain,” the doctor “also g[o]t the feeling that a good bit of his pain [was] related to fear, worry and
concern, and perhaps maybe even some anxiety.” Id. Again Mr. Gurrola considered surgery, and
again decided against it, because he was “scared of the risk involved.” Id. at 314. The last
meeting between Mr. Gurrola and Dr. Higginbotham — or any other treating physician —
documented in the record occurred on April 9, 2009. Id. at 279. In June 2002 Mr. Gurrola
moved to Mexico to live with his family. Id. at 307.
Mr. Gurrola appealed the initial denial of his application for Social Security
benefits and, with his counsel and an interpreter, attended a hearing before an Administrative
Law Judge in Colorado on October 7, 2002. A.R. at 14. On November 29, 2002, after that
hearing but before the ALJ had issued a decision, Dr. Higginbotham completed a third work
evaluation form. In this evaluation, Dr. Higginbotham opined that Mr. Gurrola was incapable of
working a full-time job because of the pain he experienced. Id. at 277. He concluded that Mr.
Gurrola could not walk or stand for even ten minutes at a time and could only sit for a maximum
of twenty minutes at a time, for a total of up to one to two hours in an eight-hour workday. Id. at
275.
In spite of Dr. Higginbotham’s recommendations, the ALJ rejected Mr. Gurrola’s
claim in a decision issued on February 27, 2003. A.R. at 14-24. He did not find Mr. Gurrola’s
allegations of pain credible, id. at 22, and thought that Dr. Higginbotham’s work restriction
evaluations were “without substantial support from the other evidence of record” and “not
consistent with the claimant’s activities and lifestyle” in Mexico, where Mr. Gurrola spent his
time walking around his family’s farm, visiting relatives, and feeding chickens and horses. Id. at
21. The ALJ concluded that while Mr. Gurrola did suffer from a severe impairment —
5
spondylolisthesis — he did not have a disability within the meaning of the Social Security
regulations because he was capable of performing “sedentary to light work.” Id. at 23.
Mr. Gurrola appealed that decision to the Social Security Administration’s
Appeals Council, which denied his request for review. A.R. at 5. He then petitioned for review
of the ALJ’s decision to the United States District Court for the District of Colorado. That court
reversed the ALJ’s decision and remanded the case for further review. Id. at 400-13. In that
court’s view, the ALJ “erred in rejecting the opinion of Gurrola’s treating physician, Dr.
Higginbotham, rejecting Gurrola’s complaints of pain, and relying solely on the Medical-
Vocational Guidelines (grids) to determine that Gurrola was not disabled.” Id. at 409.
In an opinion dated May 21, 2005, A.R. at 375-92, the ALJ on remand explained
at length why he had discounted Mr. Gurrola’s subjective accounts of his pain, A.R. at 386-87,
relied on a vocational expert to establish that work which Mr. Gurrola could perform is widely
available, id. at 390-91, and assessed the reliability of Dr. Higginbotham’s conclusions. Id. at
388-89. At the end of this reasoning process, the ALJ again found that Mr. Gurrola is not
disabled. Id. at 391. Mr. Gurrola once again sought review of that decision by the Appeals
Council, which once again rejected his request. Complaint ¶ 5. He now seeks review in this
Court.
II. DISCUSSION
Mr. Gurrola contends that the ALJ committed reversible error in concluding that
Mr. Gurrola is capable of performing substantial work that is available in the national economy.
See Plaintiff’s Motion for Judgment of Reversal (“Pl. Mot.”) at 3. According to Mr. Gurrola, the
6
ALJ erred by (1) “fail[ing] to properly address the opinions” of Dr Higginbotham contained in
his October 2, 2000 and February 27, 2001 work restriction evaluations, id. at 7-8;
(2) disregarding the Colorado district court’s order to consider Dr. Higginbotham’s conclusions,
id. at 4-6; and/or (3) neglecting to develop the administrative record sufficiently. Id. at 11-15.
The Court rejects each of these arguments.
A. Standard of Review
In a hearing conducted to determine a claimant’s eligibility for disability insurance
benefits,
the ALJ has the power and the duty to investigate fully all matters
in issue, and to develop the comprehensive record required for a
fair determination of disability. The Commissioner’s ultimate
determination will not be disturbed if it is based on substantial
evidence in the record and correctly applies the relevant legal
standards.
Butler v. Barnhart, 353 F.3d 992, 999 (D.C. Cir. 2004) (citations and internal quotation marks
omitted). “Substantial evidence” need not amount to a preponderance of the evidence. Id.Rather, it consists of “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)) (internal
quotation marks omitted). Thus, the only question for this Court is whether the ALJ’s decision is
“based on substantial evidence and a correct application of the law.” Id.B. Dr. Higginbotham’s Opinions
“Because a claimant’s treating physicians have great familiarity with his
condition, their reports must be accorded substantial weight.” Williams v. Shalala, 997 F.2d
71494, 1498 (D.C. Cir. 1993). Nevertheless, the opinion of a treating physician is controlling in a
Social Security disability case only “if it is not inconsistent with other substantial record evidence
and [it is] well-supported by medically acceptable clinical and laboratory diagnostic techniques.”
Jones v. Astrue, 654 F. Supp. 2d 37, 42 (D.D.C. 2009) (quoting Butler v. Barnhart, 353 F.3d at
1003) (internal quotation marks omitted; alterations in original). An ALJ assesses the
persuasiveness of a medical opinion by considering a variety of factors, including the following:
whether the physician in question personally examined the claimaint; the length of time the
claimant has been a patient of the physician and the types of examinations the doctor has
performed; the evidence cited by the physician in support of his or her conclusions; the
consistency of those conclusions with other evidence in the record; and the expertise of the
physician in a particular area if s/he is a specialist. 20 C.F.R. § 404.1527(d).3 Under the so-
called “treating physician rule,” if the ALJ ultimately decides not to adopt the opinions of the
treating physician, he must explain that decision and the reasons for it. Williams v. Shalala, 997
F.2d at 1498.
Mr. Gurrola argues that the ALJ did not properly assess the work restriction
evaluations completed by Dr. Higginbotham on October 2, 2000, and February 27, 2001, by
applying the criteria enumerated above. Pl. Mot. at 8. Furthermore, he asserts that while the ALJ
obviously did not accord those evaluations controlling weight, the ALJ erred by neglecting to
explain why he deemed them unpersuasive. Id. at 11. Mr. Gurrola also contends that since the
district court in Colorado that originally reviewed this case ordered the ALJ to “properly assess
3
Generally, more weight, and sometimes controlling weight, is given to the opinion
of a treating physician. See 20 C.F.R. § 404.1527(d)(1)-(2).
8
. . . the opinions of Dr. Higginbotham” on remand, the ALJ’s failure to conduct such a proper
assessment constitutes violation of a court order and merits reversal. Id. at 4. These arguments
would be persuasive if there were any support in the record for them, but there is not.
The record shows that the ALJ properly and exhaustively considered Dr.
Higginbotham’s opinions and that his decision to reject those opinions is supported by
substantial evidence in the record. It is true that the ALJ did not discuss at length either the
October 2, 2000 work restriction evaluation or the February 27, 2001 work restriction evaluation
prepared by Dr. Higginbotham. See A.R. at 389. Instead, he focused on the more recent
evaluation of Mr. Gurrola that was completed by Dr. Higginbotham on November 29, 2002. See
id. In that evaluation Dr. Higginbotham found that Mr. Gurrola’s ability to perform even
sedentary or light work was severely restricted by chronic lower back pain. See id. at 278. This
is the same opinion Dr. Higginbotham expressed in the October 2000 and February 2001 work
evaluations, except that those evaluations did not recommend quite so many restrictions on Mr.
Gurrola’s activities. See id. at 137, 150. There therefore was no need for the ALJ to discuss the
earlier evaluations at length.
The ALJ, however, did consider Dr. Higginbotham’s November 29, 2002 opinion
and the evidence supporting it in some detail. See A.R. at 386-97. He found Dr.
Higginbotham’s conclusion that Mr. Gurrola suffers from disabling pain inconsistent with the
doctor’s own observations that Mr. Gurrola’s pain responses were sometimes “exaggerated,” see
id. at 155, and at least partly attributable to “fear, worry and concern, and perhaps maybe even
some anxiety,” rather than “frank pain.” Id. at 286; see also id. at 389. He noted that in spite of
Mr. Gurrola’s claims of increasing pain, no physical examination or tests ever revealed nerve
9
damage or impairment that would explain such a high degree of discomfort. Id. at 389. The ALJ
pointed out that while Dr. Higginbotham claimed his opinions were supported by EMG test
results, there was no evidence in the record that an EMG had ever been performed. Id. There
was thus little objective evidence upon which Dr. Higginbotham’s November 2002 conclusions
could be based, while other evidence — including earlier opinions of Dr. Higginbotham himself
— seemed to contradict them.
The ALJ also explained at length that he did not consider Mr. Gurrola’s
representations to Dr. Higginbotham regarding his pain completely credible. Mr. Gurrola’s
descriptions of the pain varied widely, and, after an MRI was performed, seemed to change to
better match the MRI results. A.R. at 388. Similarly, measurement of Mr. Gurrola’s range of
motion indicated impairment only after Dr. Higginbotham discussed “at length” with Mr.
Gurrola how such measurements could indicate injury. Id. Furthermore, the activities in which
Mr. Gurrola engaged at his home in Mexico — feeding farm animals and walking around the
farm and to neighbors’ homes — and the long bus trip he took to travel from Mexico to the
administrative hearing in Colorado were not consistent with a conclusion that Mr. Gurrola could
only sit, stand or walk for very short periods of time. Id. Since Dr. Higginbotham’s impressions
of Mr. Gurrola’s condition were heavily based upon Mr. Gurrola’s own representations, see, e.g.,
A.R. at 149, 152, the ALJ’s conclusion that those representations could not be fully trusted
obviously decreased the weight that could be accorded to the doctor’s opinions.
The ALJ thus gave a plethora of reasons, amply supported by the record, for his
decision not to accept Dr. Higginbotham’s opinion that Mr. Gurrola’s condition precluded even
sedentary or light work. Contrary to the plaintiff’s assertions, the ALJ was not required to
10
address separately and at length the two functional assessments of Mr. Gurrola that predated the
November 29, 2002 evaluation. Each of the three evaluations consisted of Dr. Higginbotham’s
opinions regarding Mr. Gurrola’s ability to perform various types of activities — for example,
sitting, standing, and lifting — as of the date of the assessment. See A.R. at 137, 150, 275-79.
The 2002 assessment was Dr. Higginbotham’s last and most current evaluation of Mr. Gurrola’s
functional capacity. Dr. Higginbotham nowhere indicated in that assessment that he incorporated
by reference the work restrictions recommended in prior assessments; instead, the assessment
appears to contain a comprehensive list of Mr. Gurrola’s limitations, as Dr. Higginbotham
perceived them, as of November 29, 2002. The 2002 assessment thus superseded the 2001 and
2000 assessments, and the ALJ properly focused his attention on the most recent evaluation.
Furthermore, the ALJ used proper criteria to decide how much weight to give Dr.
Higginbotham’s opinions. He considered the length and nature of the doctor-patient relationship,
see A.R. at 379-89 (documenting meetings between Dr. Higginbotham and Mr. Gurrola and
examinations performed); the evidence upon which Dr. Higginbotham relied, see id. at 388-89;
and evidence inconsistent with the doctor’s conclusions. See id. at 386-89. By properly
addressing the opinions of Dr. Higginbotham, explaining why he did not accept them, and
accompanying his explanation with references to substantial evidence in the record, the ALJ also
satisfied the order of the United States District Court for the District of Colorado that required
him to give adequate consideration to Dr. Higginbotham’s findings and conclusions. The ALJ’s
treatment of Dr. Higginbotham’s opinions therefore does not provide grounds for reversal.
11
C. Development of the Administrative Record
“[A]n administrative law judge has the affirmative duty to investigate fully all
matters at issue and to develop the comprehensive record requisite for a fair determination of
disability.” Poulin v. Bowen, 817 F.2d 865, 870 (D.C. Cir. 1987). The plaintiff contends that the
ALJ breached that duty in this case because he did not order a consultative examination of Mr.
Gurrola or seek additional evidence, beyond that contained in the record, from Dr.
Higginbotham. Pl. Mot. at 12, 14. The Court disagrees and finds that the ALJ adequately
developed the record.
An ALJ may arrange for an additional examination of a claimant at the expense of
the Social Security Administration if “the information [the ALJ] need[s] is not readily available
from the record of [the claimant’s] medical treatment source” or the ALJ is “unable to seek
clarification from [the claimant’s] medical source.” 20 C.F.R. § 404.1512(f). Mr. Gurrola
claims that the ALJ should have ordered a consultative exam of him because the last documented
examination of Mr. Gurrola by Dr. Higginbotham occurred on April 9, 2002, and the ALJ issued
his most recent decision in this case on May 21, 2005. Pl. Mot. at 13. Mr. Gurrola suggests that,
as result of this gap between his last medical examination and the administrative determination,
“a consultative examination was required to evaluate [his] impairments.” Id. He is incorrect.
No such examination is “required” under the statute, case law, or regulations. As Judge Walton
has pointed out, it is the claimant’s “responsibility to ‘provide medical evidence showing that [he
has] an impairment and how severe it is during the time that [he is] disabled.’” Hynes ex rel.
Davis v. Astrue, Civil Action No. 01-1231, 2009 WL 1312545, at *4 (D.D.C. May 12, 2009)
(citing 20 C.F.R. § 416.912(c)).
12
Mr. Gurrola, who was represented by counsel throughout the administrative
process, does not claim that he suggested to the ALJ at any point that his impairment had
worsened since his last visit with Dr. Higginbotham, or that he ever requested or sought an
additional examination before the ALJ ruled. The ALJ therefore had no reason to think that a re-
evaluation of Mr. Gurrola’s condition was necessary, and he clearly had no obligation to update
the record in the absence of evidence suggesting that the record was incomplete. “[A]lthough the
ALJ has a duty to fully explore the facts, the ALJ does not act as counsel for the claimant.”
Hynes ex rel. Davis v. Astrue, Civil Action No. 01-1231, 2009 WL 1312545, at *4 (quoting
Musgrave v. Sullivan, 966 F.2d 1371, 1377 (10th Cir. 1992)) (internal quotation marks omitted).
The ALJ based his decision on numerous reports by Dr. Higginbotham, other doctors who had
personally examined Mr. Gurrola, an agency medical expert, and a vocational expert, as well as
on Mr. Gurrola’s own testimony. He thus had ample evidence upon which to base his
conclusions.
Finally, Mr. Gurrola asserts that the ALJ had a duty to “recontact” Dr.
Higginbotham for additional information. An ALJ may seek such additional information from a
treating physician when “the evidence . . . receive[d] from [the] treating physician or
psychologist is inadequate [to permit the ALJ] to determine whether [a claimant] is disabled.” 20
C.F.R. § 404.1512(e). According to Mr. Gurrola, the ALJ needed additional information because
the ALJ found “that the Plaintiff’s treating physician’s reports contained conflicts.” Pl. Mot. at
15. Nothing in the regulations or the case law requires an ALJ to recontact a treating physician
when, as here, conflicts between the physician’s opinions and other substantial evidence in the
record convince the ALJ that those opinions should not be given controlling weight. As Mr.
13
Gurrola points out, an ALJ will contact a treating physician for more information when “the
report from [a] medical source contains a conflict or ambiguity that must be resolved.” 20 C.F.R.
§ 404.1512(e)(1) (emphasis added). But Mr. Gurrola has cited no specific conflict in the reports
of Dr. Higginbotham that could be resolved only by obtaining “copies of [Dr. Higginbotham’s]
records, a new report, or a more detailed report.” Pl. Mot. at 15. The ALJ did not object to Dr.
Higginbotham’s reports because he found them to be confusing or insufficiently detailed; he
objected to them because he found the conclusions reached by the doctor to be unconvincing in
light of the evidence contained in the record as a whole. See A.R. at 390.
III. CONCLUSION
For the foregoing reasons, the decision of the Administrative Law Judge is
affirmed. An Order consistent with this Opinion will issue this same day.
SO ORDERED.
/s/_______________________________
PAUL L. FRIEDMAN
United States District Judge
DATE: April 16, 2010
14